WITNESSES!—Part 3 of 4: Court Rules and the Impact on Witnesses

The title of this article—with an exclamation point—says it all. Witnesses are often considered to be the secret weapon and the best evidence to present in Court. However, the reality is quite different than most of us believe. Witnesses are limited by a number of factors including:

Courtroom testimony is allowed or prohibited by the Rules of Evidence and the Rules of Civil Procedure. The rules are complex and over-lapping and subject to interpretation before during and after a witness’s testimony. Entire legal volumes and treatises—as well as lifetime careers for some attorney—have been spent on the evaluation and administration of evidence rules and rules of civil procedure. This article briefly touches upon a few of the many considerations when determining witnesses—and how the Rules of Evidence and the Rules of Civil Procedure affect those determinations. It is not meant as an instructive treatise by any means, but as an introduction to an issue not regularly encountered by non-attorneys. The information contained, here, does not constitute a legal opinion nor is it legal advice.

After determining that a witness is wanted or needed in a case, an attorney must generally disclose the witness to the opposing party. This “Witness List” is in writing and filed with the Court. The Court rules mandate the timing and content of these witness lists. For example, certain witnesses must be disclosed 65 days before a hearing or they could be excluded. When disclosed, a witness’s contact information and substance of their testimony must also be revealed. While exceptions to the timeline for disclosing witnesses exist, an exception is specific and should not be relied upon as a substitution for following Court rules. Failing to follow the Court rules could cause a witness to be excluded. Expert witnesses, such as doctors or property appraisers or accountants are disclosed pursuant to specific rules that allow the opposing party an opportunity to retain their own rebuttal expert. This means that the attorney—when considering using an expert– must consider the amount of time it will take for that expert to investigate a situation if necessary, produce a report (which is required)—and all of this must be done within the time allotted by the Rules. All expert witnesses must also be disclosed with their curriculum vitae attached/filed with the Court, so that their preliminary qualifications to be declared an “expert” by the Court becomes part of the Court record.

One exception to disclosing a witness in advance is the “rebuttal witness”. A rebuttal witness is someone who is called to testify only AFTER the opposing party has testified or presented their case. The rebuttal witness presents testimony only regarding why the prior testimony or evidence from the opposing party is wrong. That witness is expected to have actual knowledge of a situation, but a different conclusion or recitation that is contradictory to the original witness’s testimony. Rebuttal witnesses are not, however, always allowed due to time constraints that many judges place upon litigants and attorneys for the orderly administration of their courtroom. Therefore, relying upon a “rebuttal witness” exception to save you—when you neglected to timely disclose your witnesses—is a risky practice, at best.

The substance of a witness’s testimony is also guided by Court rules, generally the Rules of Evidence. For example, a witness’s testimony must be relevant and material. Relevance means that the testimony tends to prove or counter the truth of an issue asserted. Materiality refers to the strength of that connection. While this may seem to be obvious criteria for testimony, it is not uncommon for someone going through a divorce or custody case to believe they have a witness—only to be told by their divorce attorney that the witness’s testimony is likely irrelevant or not material to the issue(s) being litigated. Relevancy need not be dramatic or overwhelming. It can be somewhat nuanced and rather distant—yet still allowed as “relevant”. However, presenting testimony regarding anything other than strongly relevant facts, subjects someone to an unfavorable ruling because the testimony wasn’t material enough to persuade the Court. Moreover, nuance takes time and explaining distant relationships between facts often causes the Court to lose interest. With the time constraints many judges place upon litigants and attorneys when presenting their case, choosing only the strongest evidence is often the best strategy.
The Rules of Evidence and Civil Procedure are tricky and often surprising to non-attorneys. Witness testimony thought to be rock solid can be excluded or diluted to bare existence when confronted with the rules. The choice of an attorney who frequently litigates and has a daily working knowledge of the application of the rules is essential to a favorable outcome in Court. The best strategy for a Client is the one that is persuasive to the Court—and to persuade the Court, the testimony and evidence must be heard and accepted by the Court.